Using a Directive as a “Shield” Rather Than a “Sword” in Horizontal Relations: Does This Concept Make Sense in the Light of the Judgment of the Court of Justice of 18 January 2022 C-261/20 Thelen Technopark Berlin GmbH v MN?

Abstract

This study of a scientific and research nature concerns one of the general principles of EU law, namely the principle of direct applicability. The publication contributes to a long-standing discussion on the direct effect of directives as secondary EU legislation. The main objective of the paper is to present the application of directives in the context of horizontal relations. This problem is of fundamental importance for explaining the mechanisms of direct application of the directives that have not been properly implemented in the national legal orders. Although in previous case law the Court of Justice had essentially opted against the concept of direct horizontal effect of directives, the issue in question, for its complexity, was again examined in one of the most recent preliminary rulings, case C-261/20 Thelen Technopark. Referring to that judgment, the author analyses the possibility of using a directive as a “shield” in the judicial application of law with an aim to eliminate a national law provision inconsistent with the directive from the rationale of the judicial decision. In particular, it concerns the possibility for directives to act in horizontal relations in such a manner that boils down to excluding the application of a provision of national law which is incompatible with it. The question of the possible use of directives as a “shield” is also examined from a slightly different perspective, namely from the point of view of the individual and the possibility to invoke a directive by the individual in the main proceedings where another individual wishes to cause an obligation be imposed on the former under the national law inconsistent with the directive. This problem, as can be argued, is ultimately resolved by the Court of Justice in case C-261/20 Thelen Technopark, which states that a national court hearing a dispute between individuals over a claim based on a national provision contrary to a directive is not required to disapply that provision solely on the basis of EU law.